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Published:
2018-12-08 11:44:41 -0500
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Recently, Tumblr announced that it would be changing its terms of service to exclude adult content. OTW Legal has gotten some questions about that change, and we’re here to help answer them!

Will Tumblr’s change in TOS change anything about the Archive Of Our Own?

No--neither the AO3 nor the OTW (the nonprofit that operates the AO3) has any relationship at all with Tumblr. Tumblr made this decision on its own, not because of any particular change in the law that would have any impact on the AO3. The AO3 was founded on principles of “maximum inclusiveness” and those principles remain true.

Can we stop Tumblr from doing this? What about free speech?

When users sign up, they agree that Tumblr can make changes to its terms of service, and because Tumblr is a private company, it doesn’t have any obligation to protect free speech. So Tumblr is legally allowed to make this change, and there is nothing that OTW Legal can do about it. As for what users can do to stop Tumblr from changing its terms of service, the unfortunate answer is probably not much. The OTW’s This Week In Fandom post from December 4 discusses some user plans that may send a message to Tumblr. That said, Tumblr surely knows it will lose many users, and it has undoubtedly made a cost-benefit calculation that the lost users won’t be too harmful to its bottom line.

What can fans do to protect their own fanworks and the works of others before Tumblr starts taking things down?

As appealing as the idea seems, the OTW is not in a position to create a social media platform of its own, and there are no plans for the OTW to offer a social media site or forum. We talk some more about why that’s true, and what fans can do to preserve their work, in a Tumblr post on December 4.

One of the ways to preserve your fanworks is to host text-based fanworks on AO3. If there’s a work you posted to Tumblr that you’d like to share on AO3, you can check out the FAQ on how to post it as a new work. (Tumblr posts don’t always work well with the importing feature, unfortunately.) AO3 can’t host images, video, or audio (yet), but if you host the files somewhere else, you can still share them on AO3.

Do you know someone who would like to share their works on AO3 but doesn't have an account? No problem! We've given 8 invite codes to all users who have had an account for 6 months or more and have:

  • posted at least 1 work, or
  • left at least 5 comments, or
  • given at least 10 kudos

Since we’re generating a lot of invitations (over 7 million!), it might take a few days for them to arrive in your account, so don’t worry if you haven’t gotten them just yet! You can follow these instructions to access and share your invite codes with anyone who wants an account.

What will Tumblr’s change in TOS mean for fans and fanworks overall?

For now, Tumblr appears to be targeting visual material (as opposed to text), although we do not know what Tumblr has planned. We expect that whatever happens, Tumblr’s filters will be inaccurate; Tumblr users have already reported incidents of content being falsely identified as 'adult'. This sort of algorithmic flagging is a problem that OTW Legal has been fighting in other contexts: in legal advocacy submissions to governments around the world, we have consistently expressed concerns about how algorithms are bad at identifying and flagging content, whether for alleged copyright violations or other matters. For that reason, we have been strong advocates against legally mandating automated filters, and have encouraged fans to reach out to their elected representatives (especially in the EU, where such proposals are pending) about legal filtering proposals that may adversely impact the availability of fanworks. Tumblr is just one example of what can happen.

It’s hard to predict what this will mean for fans and fanworks in a larger sense, but we are confident that this is just a bump in a long road. Although the OTW has long planned to be able to host non-text works on the AO3, we are still a long way away from being able to do that (and we wish that we could do it right now!). Certainly, a lot of fans will move to services other than Tumblr. But fandom is resilient! Fans and fanworks have been through similar dramatic events with popular sites in the past, including LiveJournal, fanfiction.net, and DeviantArt. In fact, it was a similar policy change at LiveJournal 10 years ago that led to the founding of the OTW and AO3! After seeing that commercial platforms such as LiveJournal (and Tumblr) will always serve their own interests over the interests of fans, the OTW dedicated the AO3 to the principle that fans need a fan-operated, non-profit archive of our own. We can’t predict or recommend what the next best platforms are to replace Tumblr, but we can promise that with your support, we’ll continue to provide a home for fanworks at the AO3, and continue working toward a platform that can host multiple media types. OTW Legal will continue to fight to keep fanworks legal and available.

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Published:
2018-09-18 12:15:20 -0400
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We've written before in this space about Articles 11 and 13 -- fan-unfriendly legal proposals in the EU. On September 12, the European Parliament voted in favor of those proposals. Is it bad? Yes. Is it the end of the story? No. Is it going to change the AO3? Probably not. What can you do about it? Read on.

Articles 11 and 13 impose new requirements on sites that host user content, like the AO3, Tumblr, YouTube, and the like. In the United States, the Digital Millennium Copyright Act protects these sites from some kinds of copyright liability, so that the sites aren't responsible for infringing content posted by their users unless the sites know it's there and that it's infringing. That's why most sites have "notice and takedown" policies: if they're warned about infringing content, they have to take it down -- and they're allowed to take fair use into consideration when they decide whether or not to take a work down. Articles 11 and 13 put the burden of preventing infringement on sites, rather than users, and make some very incorrect assumptions about the ability of algorithms to identify what uses infringe and what uses are non-infringing fair uses.

Why are these Articles bad for fans? They make sites liable for infringing material that their users post. They also create new copyright-like rights for press publications, and they make sites liable for "snippets" of press publications that their users post. These rules expect that instead of waiting to be warned about infringing material, sites would have to put in filters that prevent the uploading of infringing material. There is no exception for user-generated content, and as we've seen in other settings, the sort of algorithms that upload filters would have to use are notoriously over-inclusive. That means that the filters would often not be able to tell the difference between transformative fanworks (which generally don't infringe, often because of fair use and related principles) and piracy (which does infringe).

The language that was passed on September 12 contains nonprofit exceptions, as well as exceptions for small businesses. Based on these exceptions, the AO3 would not have to engage in filtering -- so nothing is likely to change around here! -- but other sites that fans use, like Tumblr, YouTube, and Wattpad, will be affected. And despite the exceptions, nonprofit sites (like the AO3) and small businesses that use commercial cloud-based services like AWS (Amazon) or Google’s Cloud for storage could still face massive increases in the cost to stay online, get server space, etc. It's impossible to predict the impact on sites like Goodreads and Pinterest. YouTube has posted a statement on the problems posed by the law, and it looks like they're going to keep fighting against the worst possibilities for its implementation.

So this is bad news. But it's also not the end of the story!

The Articles are not law yet. There are still opportunities to fight them. They go up for a final vote in January, and there are opportunities for change between now and then. If the Articles do pass in January, the process of "national implementation" would then begin: each country in the EU would begin to make its own laws based on the Articles. Every country's laws might implement the Articles quite differently -- some good, some bad. There will be battles over specific wording in every country.

So if you’re a citizen or resident of an EU country, reach out to your MEPs. This chart shows how each party voted. The SaveYourInternet site has an interactive tool that shows how MEPs in each country voted, and how to contact yours. This page explains how to see how your particular MEPs voted. If they voted against Article 13, contact them to thank them for doing the right thing! If they voted for it, tell them why they made the wrong choice and should change their mind when the January vote happens. Explain to them how this law will impact you personally; tell your story. Get involved with a national organization that is fighting against this law, and one that’s ready to push back against it in the courts – especially where it can curtail free speech, which is a fundamental right held by all EU residents.

As our friends at FYeahCopyright put it: "Pushing against this Directive doesn’t mean you support piracy or counterfeiting of creative works like films, books or photographs. It means, though, that you want creativity, science, communications and education to thrive online, just as they have for almost thirty years."

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Published:
2018-09-08 10:42:22 -0400
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Back in July, fans and allies helped convince the European Parliament to schedule a vote rather than automatically approving some fan-unfriendly proposals. Now it is time to act! The European Parliament will be voting on these proposals in a few days. The short version of "what can I do" is: Contact your MEP now. For the longer version, and a discussion of why these proposals matter to fans, read on!

What Are Articles 11 and 13, and Why are They Bad for Fans?

Fandom loves and thrives on the Internet, and the Internet loves and thrives on fandom! So much of what makes fan communities and fan creativity work so well are the same things that make the Internet what it is: people sharing their transformative creations and linking to things that drive their interests. We post vids, gifs, fics, filks, and so many other wonderful, creative things! We link to news stories about our favorite shows, writers, performers, and trends! We use these things to find ourselves and communicate with people all around the world.

The proposals under consideration--Articles 11 and 13 of the Proposal for a Directive on Copyrights in the Digital Single Market--could make all of these things harder to do. Both proposals would govern how the EU approaches copyright on the internet. Article 11, often called the "link tax" or "ancillary copyright," would effectively make it infringing for websites to use quotes or snippets to link to copyrighted press publications. Article 13, often called the "censorship machine," has to do with when websites are liable for material posted by their users, and whether and when websites have an obligation to filter user-posted content to prevent users from posting infringing material.

These provisions would not make fanworks illegal, but they could make fanworks harder to post and find. The precise language of these proposals is still being debated, so it's hard to predict exactly what sites would be included, and what they would make those sites do. But if they pass, they will definitely require some sites to prevent some kinds of linking and to engage in mandatory content filtering. Some versions of the proposals are worse than others. For example, in some proposals, nonprofit entities like the OTW/AO3 would be exempt from filtering obligations. In others, the rules would take into account the nature of the works hosted, but not take into account a site’s nonprofit status. Regardless, commercial sites like YouTube and Tumblr will likely see new obligations if these Articles pass. To find out even more about these proposals, we recommend reading this Reddit AMA that a few top European intellectual property professors did in June, and the Copyright 4 Creativity Coalition’s CopyBuzz post about the most recent "compromise" proposal.

What does that mean for fans? Non-commercial transformative fanworks would still be legal to create, post and view, but they could easily get caught in mandatory algorithmic filters and never even make it to the Internet. Limitations on how sites can contain links to press publications can make it harder for fans to find fannish information and content. Rules that impose liability on websites for their users' materials could easily shut some platforms down and prevent new ones from arising. So while these provisions are about Internet platforms, they could make it harder to find and post (non-infringing) fanworks online.

What can fans do?

Between now and the September 12 vote, your voice matters!

For Europeans, that means that the best thing you can do right now is to Contact your MEP and let them know that this matters to you! Let them know that you don’t want websites to be liable for material posted by their users. Let them know that you don’t want algorithms and machines to be filtering internet content for infringement--machines that won’t understand fair use, fair dealing, and transformative free expression. Let them know that Articles 11 and 13 would be bad for European creators, who depend on being able to find and post transformative works.

For people outside Europe, there is (alas!) much less to do--petitions and calls (etc.) to MEPs from outside the EU aren't helpful at this stage--but please signal-boost this issue on your social networks so that Europeans know to get involved.

OTW Legal will keep fighting for fan-friendly laws on the internet and around the world. But right now, your voice is the one that matters!

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Published:
2018-06-29 11:24:52 -0400
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UPDATE: Great News! On July 5, the European Parliament voted against automatic approval of Articles 11 and 13. The Parliament will now consider amendments and vote again in September. So there is more work to do, but this vote made that work possible. For more information about the issue, read on.

OTW Legal has gotten a lot of questions about a recent development in European Union Copyright Law: the Legal Affairs (JURI) committee of the European Parliament adopted a "Proposal for a Directive on Copyrights in the Digital Single Market." This proposal contains some fan-unfriendly provisions, known as "Articles 11 and 13." Nothing is set in stone yet: Now that the JURI committee has approved the provisions, they will go to the European Parliament, after which there may be an opportunity for further debate. But what are these provisions, what would they mean for fans if the European Parliament approves them, and what can fans do right now? The short version is: Contact your MEP now. For the longer version, read on.

What are Articles 11 and 13?

Articles 11 and 13 would govern how the EU approaches copyright on the internet. Article 11, known as the "link tax," would effectively make it infringing for websites to contain links to copyrighted press publications. Article 13, known as the "censorship machine," has to do with whether websites have an obligation to filter user-posted content to prevent users from posting infringing material.

These provisions would not make fanworks illegal, but they could make fanworks harder to post and find. Because there may be opportunity for further debate on the language, it is hard to know exactly what impact they will have if they make it through the next step. But if they do, they will govern what internet hosts have to do (sites like YouTube and Tumblr and possibly the AO3), not what fans have to do. The provisions are about linking and filtering for infringing material; noncommercial transformative fanworks will still be non-infringing. The impact for fans would be indirect--rules against linking to copyrighted press publications and rules requiring filtering for infringing material may make it harder to find and post (non-infringing) fanworks online.

Beyond the general facts that they will make fanworks harder to find and post, it is difficult to predict exactly the impact these provisions would have, because it is difficult to predict precisely the language that they will pass. The language that JURI adopted is not published in any official form, and the language is hotly debated. Some proposals are worse than others. For example, in some proposals, nonprofit entities like the OTW/AO3 would be exempt from filtering obligations. In others, the rules take into account the nature of the works hosted, but do not take into account a site's nonprofit status. Regardless, commercial sites like YouTube and Tumblr will likely see new obligations if these Articles pass. To find out even more about these proposals, we recommend reading this fantastic Reddit AMA by a few top European intellectual property professors. (In fact, the OTW legal team knows them and can vouch for their expertise!)

What can fans do?

We know that MEP Julia Reda plans to challenge the JURI committee's result in the upcoming Plenary Session of the European Parliament on July 2-5, 2018. Between now and then, your voice matters!. To force a plenary vote, at least 76 MEPs need to decide that a vote is called for. After that, a majority of MEPs would need to vote to reject the JURI committee's position. To learn more about the procedures, check out the #SaveYourInternet site.

For Europeans, that means that the best thing you can do right now is to contact your MEP and let them know that this matters to you! Let them know that you don't want the link tax. Let them know that you don't want algorithms and machines to be filtering internet content for infringement--machines that won't understand fair use, fair dealing, and transformative free expression. Let them know that Articles 11 and 13 would be bad for European creators, who depend on being able to find and post transformative works.

OTW Legal will keep fighting for fan-friendly laws on the internet and around the world. But right now, your voice is the one that matters!

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Published:
2018-06-08 12:24:53 -0400
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OTW Legal has been busy working on three advocacy projects around the world--in Canada, Australia, and the European Union. We want to thank you for your help in Canada, and let you know what’s happening and what you can do to help in Australia and the European Union.

Canada

Thanks to the many amazing stories we received from Canadian fans, we submitted a comment to the Canadian Parliament’s copyright law review about the power and benefit of laws that allow and promote transformative works. You can find our submission here.

Australia

Now we’re working on a submission for Australia! The Australian government is evaluating Australian copyright law and is considering expanding fair dealing provisions or adopting a fair use standard. OTW Legal is writing in support of these changes and would love your help. If you’re Australian and have expressed yourself, gained skills, been part of creative communities, or otherwise experienced the benefits of being able to create transformative works that would benefit from flexibility in Australian copyright law, we’d love to hear your stories. Please send them by June 25 by using our contact form. (Feel free to use a pseudonym if you don't want us to share your personally identifying information.)

European Union

OTW Legal and our allies have been active in fighting on fan-unfriendly legal proposals in the EU. Since these proposals were introduced in 2016, OTW Legal has submitted comments opposing them and has joined in calls for action against them. We’ve managed to hold them off so far and encourage some revisions, but a key vote will be happening in the European Parliament’s JURI committee on 20/21 June that could have a significant impact on the Internet and fan sites. In particular, two provisions of the current proposal would be bad for fans. Article 11 would impose a "link tax" that would make it more expensive for many websites to operate, and Article 13 would impose mandatory content-filtering requirements on websites that host user-generated content. These provisions have been hotly debated and revised a bit since the last time we reported on them. (For more on recent revisions and debates, see these discussions by the Electronic Frontier Foundation and the Hogan Lovells Firm) But despite revisions, they’re still bad deals for fans. Importantly, they don’t preserve the "safe harbors" that websites rely on to operate, and they don’t include user-generated content exceptions.

Without safeguards for user-generated content, Article 13 would require your favourite websites to implement systems that monitor user-generated content and automatically remove any content that could potentially infringe upon copyright, giving publishing giants the power to block your online expression. Sites like YouTube, Tumblr, GitHub, Soundcloud, etc., could be required to block the upload of content based on whether it has been "identified" by big corporations, rather than based on its legality. The law is still being debated, and it is difficult to predict how it would impact the OTW’s projects, including the Archive of Our Own, if it is passed. Regardless of how this vote comes out, the OTW will work as hard as we can to keep the Internet fan-friendly. But we need your help. The most effective thing you can do right now is contact your Member of European Parliament. You can use one of these tools to e-mail your MEP or call your MEP to tell them that having user-generated content on the internet is important to you.

Here’s what you can tell them: Without safe harbors for user-generated content, Article 13 of the Copyright Directive would stifle free expression on the Internet. We don’t want mandatory filtering. Algorithms don’t understand limitations and exceptions to copyright like parody, public interest exceptions, fair use, or fair dealing, and we don’t want our non-infringing videos, website posts and art blocked because of a biased algorithm created by big corporations. We want the law to protect user-generated works, not harm them.

OTW Legal will keep fighting for fan-friendly laws!

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Published:
2018-05-17 12:42:48 -0400
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Spotlight on Legal Issues

Are you Canadian? OTW Legal wants your stories about being a fan!

Over the years, OTW Legal has spoken for fans and fanwork creators in comments to governments around the world including the U.S., the E.U., Canada, Australia, and South Africa. And we want your help to keep doing that! The Canadian government is currently conducting a review of the Canadian Copyright Act. The Parliamentary Committee responsible for the review has already received some comments complaining about fan-friendly laws like the 2012 expansions to fair dealing and the User-Generated Content exception to copyright infringement. OTW Legal wants to show Parliament the other side of the story: the important value that Canadian fanwork creators get from being able to create transformative works.

Are you Canadian and have you expressed yourself, gained skills, been part of creative communities, or otherwise experienced the benefits of being able to create transformative works--works that are legal to create in Canada because of fair dealing and the UGC exception? If so, OTW Legal would love to hear your stories. We need to submit our comments soon, so please send our Legal Advocacy team your stories about how being able to create fanworks and belong to fan communities has helped you, by the end of May. (Feel free to use a pseudonym if you don't want us to share your personally identifying information.) We’ll use your stories to support our legal advocacy work in Canada and worldwide.

Thanks!

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Published:
2018-04-26 13:24:00 -0400
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A few months ago, we learned that someone had registered the domain name archiveofourowno.com and copied the front page of Archive Of Our Own at that url; they even included a login screen that mimicked the AO3 login.

We immediately went to GoDaddy--the registrar of the domain name--and asked them to remove the website, because it violated their bar on phishing (that is, tricking someone into giving away login or other personal information). GoDaddy's Terms state that they will not allow a site to impersonate "a legitimate, trustworthy site" by tricking "visitors into providing them sensitive information like logins." However, GoDaddy never responded and did not take the site down.

Therefore, in January, the OTW Legal Committee initiated a proceeding with the World Intellectual Property Office with the goal of stripping the domain name from the infringers. In April, after the infringers had failed to respond, the WIPO Panel ruled in our favor. The panel held that Bradley Binkley of Chicago, who had registered the domain name, had "in all likelihood... registered the disputed domain name with the aim of exploiting and profiting from the Complainant’s mark, through the impersonation of the Complainant in furtherance of a fraudulent phishing scheme." As a result, the panel voided Binkley's registration of the name, and the OTW is currently in the process of setting up the domain name to point to the main Archive of Our Own page.

One important takeaway from this situation is that you should never enter in your AO3 login information unless you are completely sure that you are on the real archiveofourown.org site. While we also own the domain names archiveofourown.net and archiveofourown.com they redirect you to archiveofourown.org, and that is the only site where you should enter your AO3 login information. And if you go to any site and find yourself needing to login when you thought you were already logged in, it's possible that you're on a phishing site rather than a genuine site--double check the URL to make sure!

If you visited archiveofourowno.com and entered your login information there, you should change your password on AO3, as well as any other sites where you use the same username/password combination, and run a virus-checker on your computer. We attempted to review the code from the phishing site to see if there was anything malicious; we didn't see anything obvious but it's better to be safe than sorry.

If you have more questions about the work done by the all-volunteer Legal Committee at the OTW, you can visit the Legal Advocacy page on our website.

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Published:
2018-04-13 12:32:42 -0400
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spotlight on legal issues

Lately, OTW Legal has received many queries and concerns about recent U.S. legislation known as FOSTA/SESTA. We want to reassure you that the law as it currently stands does not apply to fiction, and therefore should have no impact on the Archive of Our Own.

The term “FOSTA/SESTA” refers to legislation that has been passed by U.S. Congress and the Senate, purporting to combat what it describes as “sex trafficking.” The legislation would make it a crime to operate an interactive computer service “with the intent to promote or facilitate the prostitution of another person.” (That is, the exchange of sex for money.) Under the law, sites that “knowingly assist[], support[], or facilitate[]” prostitution can be held liable for user-posted material.

President Trump signed FOSTA/SESTA into law two days ago. Some sites, including Craigslist, preemptively changed policies in anticipation of the legislation becoming law, and in response to the FBI’s seizure of Backpage.com, a classified-ad site that was often used to advertise personal services including sex work, and which the FBI has allegedly linked to illegal sex trafficking.

Once the law goes into effect, it may not last. Many have argued that it is unconstitutional for a number of reasons, including that it effectively makes it illegal to facilitate promotion of services that are legal in some U.S. states. Many have also argued that it violates the First Amendment, and that it may make it harder for legal sex workers to maintain their personal safety and for U.S. law enforcement to identify and pursue victims of illegal sex trafficking. But unless and until it faces legal challenge in the courts, FOSTA/SESTA will probably be law.

What does this mean for fans?

FOSTA/SESTA is about promotion of personal services—prostitution—and not about fiction, art, or any other sort of fanwork.

Some sites may voluntarily decide to change their policies regarding pornography or other adult-themed material in response to the law, but those changes would not be required by the law. The only policy changes that the law requires are changes that have to do with promotion and facilitation of prostitution.

It is also possible that some particularly overzealous law enforcement members may try to stretch the law to argue that fiction, art, or other expressive works that discuss prostitution constitute “support” of prostitution. The OTW believes, however, that any such interpretation would be a gross misreading of the law, and would be a clear violation of the First Amendment of the U.S. Constitution. With that in mind, FOSTA/SESTA could make sexually explicit material more vulnerable to challenge, especially if it’s material that law enforcers do not understand—but it will not make such material illegal, and it will not make hosting such material illegal.

What does it mean for the Archive of Our Own?

The AO3 already prohibits advertising and commercial promotion. Therefore, any promotion or facilitation of prostitution that would violate FOSTA/SESTA would already be prohibited on the AO3. For that reason, in keeping with the AO3’s ongoing commitment to maximum inclusivity, any changes in the AO3’s terms of service or associated FAQ as a result of FOSTA/SESTA would be for purposes of clarification, not policy change.

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